' MANZOOR HUSSAIN SIAL, J. - By short order dated 1st March, 1983 we allowed this appeal for reasons to be recorded later. The reasons for the judgment are as follows :-
2. Mr. M. M. Khalil, the appellant herein, by means of this Letters Patent Appeal has called in question the validity of the judgment dated 9th February, 1972 passed by a learned Single Judge of this Court, Mushtaq Hussain, J. (as he then was), whereby he accepted W. P. No, 1655/R of 1964 filed by respondents Nos. 1 and 2.
3. The dispute in this case relates to an industrial concern known as "Trikha Ram Mussadi Mal Cotton Ginning Factory situate in Factory Area, Faisalabad. On 21st July, 1959 the Additional Settlement Commissioner (Industries) disposed of this property through public auction in favour of the appellant and on 5th September, 1959, the sale was confirmed by the Chief Settlement Commissioner. The appellant thereafter paid the entire price and on 27th April, 1964 Permanent Transfer Certificate was also issued in his favour.
4. This property is situate on Khasra No, 1838. It has an area of 45 kanals and 7 marlas as per entries in the relevant revenue record. Trikha Ram son of Mohan Lal and sons of Piara Singh purchased this property through Court auction. Subsequently a dispute arose between the joint owners which was, however, resolved on 8th August, 1944 through arbitrators. The Award given by the Arbitrator was signed by the parties and registered on 9th August, 1944 with the Sub-Registrar, Lyallpur. The share of the sons of Piara Singh was purchased by the sons of Trikha Ram for Rs, 1,75,000. Consequently, Trikha Ram and his sons, namely, Mussadi Mal and Moolchand became the owners of the property.
On 30th June, 1946 mutation No, 438 was sanctioned in their favour and in the Jamabandi for the year 1945-46 they were reflected as owners of the property. Their names were also shown as owners of the property in the Urban immovable property tax record for the year 1946-47 ; these entries in the revenue as well as taxation record continued even after Partition.
' The owners became evacuees and after Partition the property in dispute came in occupation of different persons. In the year 1953 the respondents Nos. 1 and 2 also entered in possession of a portion of property situate on Khasra No, 1838 without a regular allotment order in their favour. They claimed that they occupied "Piara Singh Workshop" an independent industrial concern ; consisting of 22 kanals 13 marlas although the record does not show the existence of "Piari Singh Workshop" earlier or at the time of Partition. They further claimed that their possession was regularised on 6th August, 1958 by the District Rehabilitation Officer.
' Ahmad Brothers, other occupants of the property challenged the aforesaid order dated 6th August. 1958 in appeal but their appeal failed on 31st June, 1960 before the Deputy Settlement Commissioner. Meanwhile on a form submitted by the respondents, P. T.
0. In respect of the aforesaid workshop was issued on 13th May, 1960 in their favour. Ahmad Brothers challenged that order also in Revision before Mir Ajam Khan, Settlement Commissioner, who dismissed the same and observed in his order dated 23rd June, 1961 that there was no allotment order existing in favour of the respondents or Ahmad Brothers and that they were all unauthorised occupants of the disputed property. He directed the disposal of the property through auction. The respondents and Ahmad Brothers challenged the order of the Settlement Commissioner by filing two revision petitions before the Chief Settlement Commissioner.
5. It is interesting to note that prior to April, 1964 neither the appellant challenged the order in respect of a portion of the disputed property in favour of the respondents nor the respondents assailed the order of transfer of the whole property comprising 45 kanals and 7 marlas in favour of the appellant. It was for the first time on 27th April, 1965 that the respondents Nos. 1 and 2 moved an application before the Additional Settlement Commissioner (Industries) for amendment of the Permanent Transfer Certificate issued in respect of Trikha Ram Mussadi Mal Cotton Ginning Factory so as to exclude an area of 22 kanals 13 marlas of the "Piara Singh Workship," because it was not part of Trikha Ram Mussadi Mal Cotton Ginning Factory. Khan Muqarrab Khan, Additional Settlement Commissioner (Industries) after taking into consideration the relevant record came to the conclusion that "Piara Singh Workshop" was not an independent industrial concern but a part of Trikha Ram Mussadi Mal Cotton Ginning Factory which had been already disposed of - through auction in favour of the appellant. He rejected the application and in his order dated.
22nd August, 1964 held that the respondents being unauthorised occupants had no locus standi to seek amendment in the Permanent Transfer Certificate issued in favour of the appellant.
6. The respondents feeling aggrieved against the aforesaid order filed appeal before the Chief Settlement Commissioner. Two revision petitions in respect of the property in dispute ; besides the appeal preferred against the order dated 22nd August, 1964 of the Additional Settlement Commissioner (Industries) were entrusted to Mr. Bashir Ahmad, Settlement Commissioner (Industries) with powers of Chief Settlement Commissioner for disposal. The learned Chief Settlement Commissioner vide his order dated 10th December, 1964 dismissed the revision petition as well as the appeal with the observation that the Permanent Transfer Certificate having been issued in favour of the appellant, the question of its transfer cannot be re-opened. He maintained the findings of the learned Additional Settlement Commissioner to the effect that "Piara Singh Workshop" is not a separate property and the same being part of Trikha Ram Mussadi Mal Cotton Ginning Factory had already been disposed of through auction in favour of the appellant. He further observed that the respondents were unauthorised occupants of the disputed premises.
Feeling aggrieved against the orders of the settlement authorities the respondents Nos. 1 and 2 filed Writ Petition No, 1655/R of 1964 which was allowed vide order dated 9th February, 1972 of the learned Single Judge of this Court.
7. Mr. S. M. Zafar, Advocate, learned counsel for the appellant submitted that the settlement authorities after taking into consideration the relevant record found as a finding of fact that Trikha Ram Mussadi Mal Cotton Ginning Factory comprising 45 kanals and 7 marlas was sold through auction to the appellant and "Piara Singh Workshop" did not exist as an independent in.Dustrial concern. The so-called `Piara Singh Workshop" claimed by the respondents to be an independent concern was part of Trikha Ram Mussadi Mal Cotton Ginning Factory The learned Single Judge erroneously disturbed the above mentioned finding of fact in writ jurisdiction. Learned counsel cited
(1) Muhammad Nazir v. Chief Settlement Commissioner 1968 SC M.R 1.375 ;
(2) M. A. Latif v. Fazal-ur-Rehman 1968 SCM R 1411 ;
(3) Surrayya Parveen v. Anwarul Haq D 1969 SC 309 at p. 314 ;
(4) Muhammad Tufail v. Chief Settlement and Rehabilitation Comissioner 1982 SC MR 466 ; in support of his submission,
8. In Muhammad Nazir's case the Supreme Court ruled that finding of the settlement authorities that chaubara was part of the shop ; being one of fact was not amenable to reversal in writ jurisdiction by the High Court. In the same book at page 1411 in M. A. Latif's case, the observation was made to the following effect :- "The question whether the land in dispute is a part of the factory or an independent piece of agricultural land is essentially one of fact on which the finding of the Settlement authorities is adverse to the petitioner. The High Court could not have come to a contrary conclusion without making a factual inquiry which obviously was beyond its scope in writ jurisdiction. The High Court has, therefore, rightly declined to interfere and we can find no fault with that action."
' In Surrayya Parveen's case it was also held by the Supreme Court that the Chief Settlement Commissioner after spot inspection has found that the alleged factory and adjoining bungalow being two independent units, the finding being based on authentic documents, the High Court could not disturb such finding in writ jurisdiction.
' In the last case cited by learned counsel viz. Muhammad Tufail v. Chief Settlement & Rehabilitation Commissioner the Supreme Court held that :- "Mr. Bajwa, the learned counsel for the petitioners, was once again at pains to piont out that the basement formed part and parcel of the house transferred to the petitioners. As aforesaid not less than three officers of the Settlement Department have found the basement to be part of the adjoining house No, SE.IV.41.S.
10. In the circumstances, the High Court had no jurisdiction to vary this finding of fact and the petition was, therefore, rightly dismissed."
9. Learned counsel further contended that the finding of the Settlement authorities are not liable to interference in writ jurisdiction even if different view could be taken upon the same evidence and relied on Ghulam Nabi v. Khan Muhammad Afzal Khan and Begum Wazir Ahmad Industrial Home v.
Niaz Begum for the preposition.
10. In Ghulam Nabi's case the Supreme Court observed that the fact that merely because another view of the evidence is possible would furnish no ground for interference in writ jurisdiction.
Similarly in Begum Wazir Ahmad Industrial Home's case it was observed by the Supreme Court that the finding of the Settlement Commissioner could not be interfered with in writ jurisdiction even if different view could be taken upon the same facts. The Settlement Commissioner's orders neither suffering from any jurisdictional defect nor contravening any fundamental principle in arriving at the impugned finding is liable to no interference in writ proceedings.
11. Sh. Zia Ullah, Advocate, learned counsel for the respondents at the very outset conceded that he has no cavil with the proposition that the finding of fact arrived at by the Tribunal is not liable to interference in writ jurisdiction. He, however, contended that if the Tribunal's decision is based on1 2 "no evidence" or misreading of evidence, the same is liable to be called in question in writ jurisdiction. In support of his submsssion he cited Mulibai v. Custodian of Evacuee Property wherein the Supreme Court has ruled to the effect that the decision of the Tribunal is liable to interference on facts only where the decision is based on "no evidence" or on manifest misreading or misconception of evidence or that it could not have honestly been arrived at by the Tribunal.
12. We are. However, of the view that the principle enunciated by the Supreme Court in Syed Azmat Ali v. The Chief Settlement & Rehabilitation Commissioneris of substantial help to resolve the issue wherein it has been observed as follows :- "In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi-judicial authorities or Tribunal, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interference, substitute its own decision for the decision of the inferior authority or Tribunal.
' This principle was followed in Muhammad Hayat v. Shakoor Ullah wherein it was held that High Court in writ jurisdiction setting aside order of the Tribunal below cannot substitute its own decision for that of the Tribunal.
' Similarly, in Abdur Rahman Bajwa v. Sultan it was observed that all that the High Court can do while interfering in the decision of the final Tribunals or Courts is to see whether the Tribunal or the Court has acted without jurisdiction or acted in violation of the relevant statute or the law laid down by the superior Courts.
13. It was next contended by learned counsel for the appellant that the decision given by the Tribunal vested with jurisdiction even if erroneous, cannot be interfered with in constitutional jurisdiction of the High Court. He referred to Muhammad Hussain v. Sikandar and Abdur Rahman Bajwa v. Sultan in support of his contention, wherein it has been held that the Tribunal set up under ordinary law having jurisdiction to decide a particular matter has jurisdiction to decide it rightly or wrongly. The mere fact that the decision being incorrect does not render the decision to be without jurisdiction.
' Learned counsel for the respondents did not controvert the above proposition of law but emphasised his contention that the learned Single Judge in exercise of his writ jurisdiction can look into the record and arrive at finding of fact different from that of the Tribunal if the tribunal has misread the evidence or non-considered material evidence on the record..
14. Considering the judgment of the learned Single Judge in the present case in the light of the aforementioned principles, it is imperative to examine as to whether in the instant case the decision of the Settlement authorities suffers from any jurisdictional defect or contravenes any fundamental principle of law while arriving at the impugned finding of fact and whether the same is liable to interference in writ jurisdiction. In this connection reference to findings of fact recorded by the learned Additional Settlement Commissioner in last paragraph of his order dated 22nd August, 1964 is necessary and the same are reproduced hereunder :-- "(i) That the entire Khasra No, measuring 45 Kanals 7 Marlas belonged to Trikha Ram Mussadi Mal and Mool Chand since 1944.
(ii) That on this Khasra No, was constructed a factory which was previously owned by Trikha Ram and sons of Piara Singh and others but had subsequently came to vest in Trikha Ram and sons on account of sale as evidenced by the Award.
(iii) The factory which was commonly called Trikha Ram Mussadi Mal Factory is a registered concern under the Factories Act, 1934. The area under the factory is 31 Kanals and the remaining area is either under the occupation of the houses, godowns or open garden belonging to Triskha Ram and his sons.
(iv) That the factory was an indivisible unit.3 4 5 6
(v) That the notice for auction was of Trikha Ram Mussadi Mal Cotton Factory as a whole.
(vi) The entry in Khasra Girdawari of 1957 and subsequently in the Jamabandi for the. Year 1957-58 mentioning in the possession, column 'S. Piara Singh Workshop' are fictitious and unreliable. There was no occasion to mention this in the possession column when it was absent in the earlier Girdawaris and Jamabandis.
(vii) That Manzoor Textile Works and Amin Dyeing and Calico Printing Works are unauthorised occupants and they have no locus standi to file this application.
(viii) The P. T. O. Issued to Mr. M. M. Khalil correctly describes the property which was auctioned and purchased by him and that it calls for no amendment."
' These findings were maintained by the learned Settlement Commissioner (Industries) exercising powers of the Chief Settlement Commissioner vide his order dated 10th December, 1964 holding that "Piara Singh Workshop" is not a separate property requiring independent disposal. He held that it was a part of factory already transferred in favour of the appellant. The learned Single Judge, however, reversed the above findings of fact arrived at by the Settlement authorities and on the contrary held :---
(1) Piara Singh Workshop is independent industrial concern.
(ii) Trikha Ram Mussadi Mal Cotton Ginning Factory was sold through auction to appellant which was in possession of S. M. Yusuf and sons lessees and the area whereof was not more than 22 Kanals 14 Marlas.
(iii) Piara Singh Workshop existed before Partition and this name could not have been acquired after Partition.
' It is, therefore, clear that the findings of fact of the learned Single Judge from the documents on the record are opposed to that of the Settlement authorities. The question arises as to whether in the light of the well-established principles laid down by the Supreme Court highlighted above ; the impugned judgment is maintainable particularly when the learned Single Judge omitted to take into consideration the following documents existing on the record which have great bearing on the findings of fact arrived at by the Settlement authorities :-
(1) Registered award dated 8th August, 1944 whereby sons of Piara Singh sold their shares of the property to the sons of Trikha Ram ; and onward for all intents and purposes Trikha Ram and his sons became the sole owners of the property known as "Trikha Ram Mussadi Mal Cotton Ginning Factory," situate in Khasra No, 108 and comprising an area of 45 Kanals and 7 Marlas.
(2) Mutation No, 834 sanctioned on 30th June, 1946 followed by entries in Jamabandi for the year 1945-46 showing Khasra No, 1838 under Trikha Ram Mussadi Mal Cotton Ginning Factory having an area of 45 Kanals and 7 Marlas.
(3) Entries in the register of Urban Immovable Property Tax for the year 1946-47 whereby Trikha Ram Mussadi Mal Cotton Ginning Factory was shown to consist upon 45 Kanals and 7 Marlas with 100 rooms.
(3) The report contained in document R/10 testifying that "Piara Singh Workshop" was not assessed to property tax.
' The learned Single Judge on the contrary relied on inventories and site plan prepared at the time of the delivery of possession of the disputed property. The authenticity of the aforesaid documents being doubtful were rightly not relied by the Settlement authorities. According to them, the name "Piara Singh Workshop" was coined later and it did not exist in the revenue record, taxation record and municipal record before or at the time of Partition. The presumption raised in pars 12 of the impugned judgment that it was nobody's case that the appellant ever took possession of any part of the property being claimed by the respondents as "Piara Singh Workshop" was contrary to contents of paragraph 11 (vi) of the written statement in which the appellant asserted that at the time of taking over possession, the respondents were in occupation of few quarters as trespassers.
Ch. Abdur Rehman and Ghulam Fareed etc., requested the appellant to give them some time and the appellant in good faith on humanitarian grounds allowed them to stay therein for shortwhile.
' It is true that the learned Single Judge also did not advert to the finding of the Settlement authorities that the respondents were unauthorised occupants on a portion of the property sold in favour of the appellant ; and the observation that "Piara Singh Workshop" existed prior to 1947 had support of no document from the record. In fact, learned counsel appearing on behalf of the respondents before the Settlement authorities failed to point out any document to show that "Piara Singh Workshop" existed as a separate industrial unit before or at the time of Partition.
' In these circumstances the findings of fact arrived at by the settlement authorities cannot be construed having been based on no evidence or result of misreading of evidence or non- consideration of material evidence on the record. On the other hand, we may say with all respects to the learned Single Judge that he omitted to consider material documents on the record and disturbed the findings of fact arrived at by the Settlement authoritie beyond the scope of the writ jurisdiction.
' The case referred and relied to in the impugned judgment by the learned Judge, namely, J. H.
Beans (H. M. Inspecter of Taxes) v. Doncaster Amalgamated Collieries Ltd., is distinguishable and the principle laid down therein is not applicable to the circumstances of the instant case.
Undoubtedly, from the facts found the conclusion drawn may be a point of law but only one logical, and consistent inference derived therefrom would be correct. In the present case the conclusion drawn is not in accord with the material available on the record.
' The dictum laid down in M. A. Latif v Fazalur Rehman fully covers the circumstances of the instant case. It was held therein that the land in dispute is a part of the factory or an independent piece of agricultural land ; is essentially one of the fact and the findings of the Settlement authorities cannot be disturbed in writ jurisdiction. This view was followed in Karachi Industrial and Textile Mills. v.
Settlement Commissioner (Industries) and it was held that the Settlement Commissioner in the impugned order after examining the relevant record was satisfied that the premises purchased by the respondents in auction included all the three portions of the property and this being clearly a finding of fact cannot be reopened in writ jurisdiction. It was also observed that the circumstances appearing on the record ; could sustain the findings arrived at by the settlement authorities ; and the same even if erroneous could not be held as perverse so as to call for interference in the writ jurisdiction:
15. The next contention raised by learned counsel for the appellant was that the industrial concern as it existed at the time of Partition ; has to be transferred as a whole. It cannot be divided to accommodate occupants therein as in the case of residential properties.
16. Learned counsel for the respondents, on the other hand, submitted that for the purpose of the disposal ; the position of the industrial concern at the time of auction would be relevant and not as it was at the time of Partition. He also stated that the settlement authorities are empowered to transfer the industrial concern ; if it has developed into an independent unit and placed reliance on A. H. Minhas v. Ghulam Ahmad and Zahiruddin v. Karrar Hussain in support of his submission.
17. In A. H. Minhas's case the Supreme Court maintained the finding of the High Court based on evaluation of documents to the effect that two houses were distinct properties and the settlement authorities holding those properties to be one house ; violated the observations of the Supreme Court made in the judgment delivered in Appeal No, 143 of 1963.
' In the second case viz. Zahiruddin v. Karrar Hussain Mr. Justice Qadeerud Din Ahmad (as he then was) learned Judge of Sind High Court, after referring to the definition of 'House' as given in section 2 (4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and examining the instructions of the Settlement Department observed, relevant to the extent is as follows : -7 8 9 10 11 "The above instructions lead to the conclusion that the power of the Settlement authorities was not only to declare a building consisting of one unit or more but also to divide it if convenient and self- contained residential or business units could be found in them. Moreover, it would appear from the above instructions that importance to the position as it existed in 1947 has not been given."
' The above-mentioned cases cited by learned counsel for the respondents are distinguishable and not relevant to the point in issue because the same pertain to house where the principle of the divisibility of residential premises is applicable as contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the instructions issued by the competent authorities thereunder. However, the provisions of para. 15 of the Schedule contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which are relevant for the disposal of the industrial concerns do not envisage such treatment.
18. The contention of learned counsel for the appellant that the industrial concern has to be transferred as a whole has substance. In Ghafooran Nisa v. Chief Settlement Commissioner it was held that the industrial concern whenever it has to be transferred by public auction has to be disposed of as a whole and its transfer or disposal in certain shares to its occupants and in certain shares by public auction is not permitted by any provision of law. Para. 15 of the Schedule contemplates auction of evacuee industrial concern as a whole just like big mansions and hotels which cannot be transferred in parts by auction.
The Settlement authorities after taking into consideration the reveal record, the taxation record and the rehabilitation record before Partition and thereafter had come to conclusion that Trikha Ram Mussadi Mal Cotton Ginning Factory being one unit had an area of 45 Kanals 7 Marks and any industrial concern in the name of "Piara Singh Workshop" could no originate therefrom for the purpose of its separate disposal.
19. For the foregoing reasons we are unable to agree with the finding of the learned Single Judge and hold that the impugned judgment w passed beyond the scope of writ jurisdiction to disturb the findings of fact arrived at by the Settlement authorities.
20. In the result, this appeal is allowed and the impugned judgment of the learned Single Judge is set aside with costs. 1970 SCM R 68 PLD 1976 SC 214 PLD 1964 SC 648 PLD 1964 SC 260 1968 SCMR. 1376 PLD 1981 SC 522 (1944) 2 All E R 279 1968 SCMR 1411 PLD 1978 Kar. 328 1974 SCMR 394 PLD 1968 Kar.
PLD 1975 Lah. 89